+STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T.,CHANDIGARH
Complaint case No. | : | 66 of 2013 |
Date of Institution | : | 27.09.2013 |
Date of Decision | : | 03.01.2014 |
1. Deepak Jain, s/o Sh. S.K. Jain, H.No.1158, Universal Enclave, Sector 48B,Chandigarh.
2. Varun Sood, S/o Sh. R.K. Sood, H.No.341, Sector 11, Panchkula-134109.
……Complainants
Vs.
1. Emaar MGF Land Limited, (Mohali Hills), SCO 120-122, 1st Floor, Sector 17-C, Chandigarh-160017, through its authorized signatory.
2. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director.
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE:JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
Argued by:Sh. VishalBali, Advocate for the complainants.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
2. 40,50,354/-. The said amount included Rs.38,77,854/- already deposited by the complainants + Rs.1,72,500/- i.e. 5% of the BSP, which offer vide letter dated 04.02.2009 Annexure C-2 (colly.), was given by the Opposite Parties, as clearly indicated in Annexure C-10 statement of account, wherein, it was mentioned at two places that “Qualified for 5% waiver= Rs.1,72,500/- and Qualified and amount for 5% Waiver= Rs.1,72,500/-”. According to Clause 8 of the Plot Buyer`s Agreement dated 20.06.2007 Annexure C-1, the Opposite Parties were to handover the physical possession of residential plot, within a period of 2 years and not later than three years, from the date of execution of the same. Thus, the Opposite Parties were to deliver the possession of residential plot, to the complainants, latest by 20.06.2010. It was further agreed to, by way of the Agreement, referred to above, that, in case, the possession of fully developed residential plot was delayed, on account of the reasons, beyond the control of the Opposite Parties, they would be liable to pay penalty/compensation @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay, beyond three years, to the allottee(s).
3. ,but there was no progress, in the project. Again the complainants visited the site in the year 2010. They were shocked to see that by 20.06.2010, no development had been made at the site, and, as such, the question of delivery of possession of the plot, allotted to them, did not at all arise. The complainants, thereafter, kept on visiting the office of the Opposite Parties, with a request to handover the physical possession of the fully developed plot, in question, but they lingered on the matter on one pretext or the other.
4. Consumer Court. At that stage Ms. Pooja and Shveta, officials of the Opposite Parties, suggested the complainants, to apply for change of plot, in 109-MLU-17-300 at Mohali Hills, instead of plot no.109-AG-229-300. Accordingly, the complainants made a request to the Opposite Parties, vide email dated 31.08.2012 Annexure C-3 (colly.) to allot plot, in 109-MLU-17-300 at Mohali Hills, instead of plot no.109-AG-229-300 because in that area there were some signs of development. Accordingly, the request of the complainants was acceded to, by the Opposite Parties, vide letter dated 16.10.2012, Annexure C-4, and plot no.17, measuring 300 square yards, in Block No.MLU, Sector 109, SAS Nagar Mohali, Punjab, instead of 109-AG-229-300, was allotted, in their favour vide Annexure C-4. Preferential Location Charges, to the tune of Rs.4,31,250/-, had already been paid to the Opposite Parties, as was evident from their admission, in the letter dated 16.10.2012 Annexure C-4. It was further stated that as per the unit shifting payment plan Annexure C-4A, attached with the letter dated 16.10.2012- Annexure C-4, the basic Sale price of the plot, remained to be Rs.40,50,354/-, meaning thereby that the complainants were not required to pay or receive anything, as far as the allocation of the new unit, instead of the old one was concerned. Thereafter, an amended Plot Buyer`s Agreement Annexure C-5, was executed between the parties, on 26.11.2012, in respect of the newly allotted plot no.17, measuring 300 square yards, in Block No.MLU, Sector 109, SAS Nagar Mohali, Punjab, with certain modifications, in the terms and conditions of the old Plot Buyer`s Agreement dated
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6. Punjab, would be delivered, before July 2013, but to no avail. It was further stated that, thereafter, email dated 13.07.2013 Annexure C-8 was sent to the Opposite Parties by the complainants, for delivery of possession of the plot, in question, in their favour, as also to pay compensation, as per the Agreement, as a result whereof, reply dated 15.07.2013 Annexure C-9, was received from them (Opposite Parties) whereby it was informed that sewerage and water supply lines were being laid, in the area, where the new unit, in question, was located and it was expected to complete the pending works, on the third quarter of 2013,
7. cost of litigation, to the tune of Rs.30,000/-.
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14. There was, thus, continuing cause of action, in favour of the complainants, to file the complaint.In
15. No evidence was produced by the Opposite Parties, that the complainants are property dealers dealing in the sale purpose of investment, with a view to resell the same, as and when, there is escalation, in the prices of real estate. No other evidence, was produced by the
16. UndisputedlyRs.38,77,854/- 17.
“We would like to inform that penalty for delay in handing over the possession shall be payable/adjustable as per the terms and conditions mentioned in the buyers agreement”.
Even vide e-mail Annexure C-7A dated 5.11.2012 the
“Thank you for writing in to us!
Further to your mail, please be informed and as shared with you earlier that for delays in possession, if any, will be covered as per the terms and conditions of the buyer’s agreement, which stands executed on 20th
We would also like to confirm that there are no other changes in the terms and conditions of the buyer’s agreement, apart from the clauses already amended in the amendment agreement.
Trust that clarified”.
Still vide Annexure C-9 dated 15.7.2013 the
“Further, please be informed that the penalty for delays in offering possession, if any, shall be applicable as per the terms and conditions of the Buyer’s agreement. The same shall be taken up for consideration at the time of registration”
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19. Annexure C-5, committing therein that the penalty for delays in offering possession, if any, shall be applicable as per the terms and conditions of the Buyer’s Agreement, and the same shall be taken up for consideration, at the time of registration, they (Opposite Parties) could not later on turn round, to say that they were not liable to pay compensation,
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21. Punjab. Punjab, as per Clause 8 of theBharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd., a case decided by a three Judge Bench of the Hon`ble Supreme Court, a question arose, that when the parties have contracted and limited their liabilities, whether the State/National Commission could go beyond the terms of the contract and give relief for damages, in excess of the limit, prescribed under the contract or not. It was held that when there is a specific term, in the contract, signed by the parties, they are bound by the same, and relief for damages, in excess of the limit, prescribed under the same (contract), cannot be given. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Thus, as stated above, the complainants are only entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 20.06.2010 (promised date) onwards, on account of delay, in delivery of possession of the plot, as per Clause 8 of the Agreement, referred to above. The complainants are thus not entitled to interest claimed by them on the amount deposited by them, towards the price of the plot, in question.
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The Opposite Parties, are directed to handover the physical possession of plot No.17 measuring 300 Square yards in Block No. MLU, Sector 109, SAS Nagar Mohali,Punjab, to the complainants, within three months, complete in all respects from the date of receipt of a certified copy of the order, on payment of amount, if any, due against them (complainants)
The Opposite Parties, are further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 20.06.2010 (the promised date of delivery of possession), till delivery of possession of plot No.17 measuring 300 Square yards in Block No. MLU, Sector 109, SAS Nagar Mohali, Punjab, to the complainants, as per Clause 8 of the Plot Buyer`s Agreement dated 20.06.2007, Annexure C-1.
The Opposite Parties, are further directed to pay compensation, in the sum of Rs.2 lacs, on account of mental agony and physical harassment, caused to the complainants, at their hands.
The Opposite Parties, are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
Compensation granted to the complainants, as mentioned in Clause (ii), which has fallen due upto31.12.2013, shall be paid by the Opposite Parties, within one month, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 20.06.2010, till delivery of possession of plot No.17 measuring 300 Square yards, in Block No. MLU, Sector 109, SAS Nagar Mohali,Punjab.
Compensation accruing due @Rs.50/- (Rupees Fifty only), per square yards, w.e.f.01.01.2014, per month, onwards, shall be paid by the 10th
Compensation granted, in favour of the complainants, as mentioned in Clause (iii), shall be paid by Opposite Parties, within a period of one month, from the date of receipt of a certified copy of the order, to them, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization.
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Pronounced.
January 3, 2014 [JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
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STATE COMMISSION
(Complaint Case No.)
Argued by:Sh. VishalBali, Advocate for the complainants.
Dated the
ORDER
(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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